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Texas' top prosecutor: Drug source can be secret

Nomaan Merchant and Michael Graczyk Associated Press

Updated:
05/30/2014 01:34:00 AM EDT

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File - In this April 12, 2005 file photo is the death chamber at the Missouri Correctional Center in Bonne Terre, Mo. Missouri's attorney general said Thursday, May 29, 2014 the state should establish its own laboratory to produce chemicals for use in executions, rather than rely on an "uneasy cooperation" with medical professionals and pharmaceutical companies. (AP Photo/James A. Finley, File)

Thursday's decision was a reversal for the state's top prosecutor on an issue being challenged in several death penalty states. It came the same day that Missouri Attorney General Chris Koster said his state should consider creating its own laboratory for execution drugs rather than relying on "uneasy cooperation" with outside sources.

Under Abbott, who is also the Republican nominee for governor in the nation's busiest death penalty state, the Texas Attorney General's Office had since 2010 rejected three similar attempts by the Texas Department of Criminal Justice to keep secret its source of the drugs used to carry out lethal injections.

While courts have consistently refused to stop executions over the privacy issue, lawyers for death row inmates say they need the information to verify the drugs' potency and protect inmates from unconstitutionally cruel and unusual punishment.

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The assessment cited by Abbott's office is a one-page letter dated March 7 in which McCraw says a Houston-area compounding pharmacy that was publicly identified as Texas' previous drug supplier received threats that "should be taken seriously." His letter did not specify those threats, and a DPS spokesman last month said he was not aware of any investigation into threats made against the supplier, the Woodlands Compounding Pharmacy.

"Pharmacies by design are easily accessible to the public and present a soft target to violent attacks," McCraw said.

Unlike some states, Texas law doesn't specifically say whether prison officials must disclose where they buy lethal injection drugs. The opinion from Abbott's office says that "in this instance and when analyzing the probability of harm, this office must defer to the representations of DPS, the law enforcement experts charged with assessing threats to public safety."

In Missouri, Koster's suggestion that the state create its own lab raises several questions, including whether Missouri can do so without approval from the Legislature. A state-operated lab would be a first.

"As a matter of policy, Missouri should not be reliant on merchants whose identities must be shielded from public view or who can exercise unacceptable leverage over this profound state act," Koster said.

Earlier this month, The Associated Press and four other news organizations filed a lawsuit against the Missouri Department of Corrections, claiming the state's refusal to provide information on the execution drug violates the public's constitutional right to have access to information about the punishment.

Death penalty states have been scrambling to find new sources of drugs after several drugmakers, including many based in Europe, refused to sell drugs for use in lethal injections. That's led several states to compounding pharmacies, which are not as heavily regulated by the Food and Drug Administration as more conventional pharmacies.

Courts up to the U.S. Supreme Court have yet to halt an execution based on a state's refusal to reveal its drug supplier. The secrecy argument also was used ahead of a bungled execution last month in Oklahoma, though that inmate's faulty veins, not the execution drug, were cited as the likely culprit.

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Graczyk reported from Houston. Associated Press writer Jim Salter in St. Louis contributed to this report.

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